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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs and Counterclaim Defendants,
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`v.
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA, INC.; and PHILIP MORRIS
`PRODUCTS S.A.,
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`Defendants and Counterclaim Plaintiffs.
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`Case No. 1:20-cv-00393-LO-TCB
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`[PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO SEAL
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`This matter is before the Court on the motion filed by Defendants Altria Client Services,
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`LLC (“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip Morris Products S.A. (“PMP”)
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`(collectively, “Defendants”) to seal an un-redacted version of Defendants’ Opposition to
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`Plaintiffs’ Second Motion to Compel Production of Documents Related to Defendants’ ’374
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`Patent Infringement Counterclaim, and accompanying exhibits 1-13, pursuant to Federal Rule of
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`Civil Procedure 5.2(d) and Local Civil Rule 5(C). Because the documents that Defendants seek
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`to seal contain confidential, proprietary, and competitively sensitive business information of the
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`Plaintiffs RAI Strategic Holdings, Inc., and R.J. Reynolds Vapor Company’s (collectively,
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`“Plaintiffs”), Plaintiffs filed a memorandum in support of Defendants’ sealing request.
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`Before this Court may seal documents, it must: “(1) provide public notice of the request
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`to seal and allow interested parties a reasonable opportunity to object, (2) consider less drastic
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`alternatives to sealing the documents, and (3) provide specific reasons and factual findings
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`supporting its decision to seal the documents and for rejecting the alternatives.” Ashcraft v.
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`Case 1:20-cv-00393-LO-TCB Document 516-1 Filed 03/22/21 Page 2 of 4 PageID# 11459
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`Conoco, Inc., 218 F.3d 282, 288 (4th Cir. 2000) (internal citations omitted). Upon consideration
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`of Defendants’ motion to seal and its memorandum in support thereof, the Court hereby FINDS
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`as follows:
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`1.
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`The public has received notice of the request to seal and has had reasonable
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`opportunity to object. Defendants’ sealing motion was publicly docketed on March 17, 2021, in
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`accordance with Local Civil Rule 5. Plaintiffs have filed a memorandum in support of sealing.
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`The “public has had ample opportunity to object” to Defendants’ motion and, since “the Court
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`has received no objections,” the first requirement under Ashcraft, 218 F.3d at 302, has been
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`satisfied. GTSI Corp. v. Wildflower Int’l, Inc., No. 1:09-cv-123-JCC, 2009 WL 1248114, at *9
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`(E.D. Va. Apr. 30, 2009); U.S. ex rel Carter v. Halliburton Co., No. 1:10-cv-864-JCC/TCB,
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`2011 WL 2077799, at *3 (E.D. Va. May 24, 2011) (“[T]he parties provided public notice of the
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`request to seal that allowed interested parties a reasonable opportunity to object—nearly two
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`weeks.”).
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`2.
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`Defendants seek to seal and redact from the public record only information
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`designated by the parties as confidential. Defendants have filed publicly a redacted version of
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`Defendants’ Opposition to Plaintiffs’ Second Motion to Compel Production of Documents
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`Related to Defendants’ ’374 Patent Infringement Counterclaim, and accompanying exhibits 1-13,
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`(Dkt. 493), in addition to a sealed version (Dkt. 497), and have redacted only those limited
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`portions they seek to seal. This selective and narrow protection of confidential material
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`constitutes the least drastic method of shielding the information at issue. Adams v. Object
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`Innovation, Inc., No. 3:11-cv-272-REP-DWD, 2011 WL 7042224, at *4 (E.D. Va. Dec. 5, 2011)
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`(The “proposal to redact only the proprietary and confidential information, rather than seal the
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`entirety of his declaration, constitutes the least drastic method of shielding the information at
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`Case 1:20-cv-00393-LO-TCB Document 516-1 Filed 03/22/21 Page 3 of 4 PageID# 11460
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`issue.”). The public has no legitimate interest in information that is confidential to Plaintiffs. Id.
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`at *4 (“[T]here is no legitimate public interest in disclosing the proprietary and confidential
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`information of [the defendant] … and disclosure to the public could result in significant damage
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`to the company.”). The information that Defendants seek to seal includes confidential,
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`proprietary, and competitively sensitive business information of Plaintiffs and/or third parties,
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`each of which could face harm if such information were to be released publicly. Specifically, the
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`sensitive information that Defendants move for leave to file under seal, and to redact from a
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`publicly filed version, includes:
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`• An un-redacted version of Defendants’ Opposition to Plaintiffs’ Second Motion to
`Compel Production of Documents Related to Defendants’ ’374 Patent Infringement
`Counterclaim;
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`• Confidential correspondence between counsel for the parties of this case, labeled
`as Exhibit Nos. 1, 2, 9-12;
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`• Confidential business documents, labeled as Exhibit Nos. 3-6;
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`• The confidential declaration of Mr. Henry Lam, labeled as Exhibit No. 7;
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`• A confidential agreement, labeled as Exhibit No. 8; and
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`• The confidential declaration of attorney Daniel McNeely, making certain
`representations about discovery in this case, labeled Exhibit No. 13.
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`3.
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`There is support for filing portions of Defendants’ Opposition to Plaintiffs’
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`Second Motion to Compel Production of Documents Related to Defendants’ ’374 Patent
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`Infringement Counterclaim, and accompanying exhibits 1-13 under seal, with a publicly filed
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`version containing strictly limited redactions. Defendants’ Opposition to Plaintiffs’ Second
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`Motion to Compel Production of Documents Related to Defendants’ ’374 Patent Infringement
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`Counterclaim, and accompanying exhibits 1-13 contain material that falls within the scope of the
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`stipulated protective order. Placing these materials under seal is proper because the public’s
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`Case 1:20-cv-00393-LO-TCB Document 516-1 Filed 03/22/21 Page 4 of 4 PageID# 11461
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`interest in access is outweighed by a party’s interest in “preserving confidentiality” of the limited
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`amount of confidential information that is “normally unavailable to the public.” Flexible
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`Benefits Council v. Feltman, No. 1:08-cv-371-JCC, 2008 WL 4924711, at *1 (E.D. Va. Nov. 13,
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`2008); U.S. ex rel. Carter, 2011 WL 2077799, at *3.
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`Therefore, based on the findings above, for good cause shown, it is hereby
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`ORDERED that the motion is GRANTED, and Defendants are granted leave to file a
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`REDACTED version of Defendants’ Opposition to Plaintiffs’ Second Motion to Compel
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`Production of Documents Related to Defendants’ ’374 Patent Infringement Counterclaim, and
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`accompanying exhibits 1-13.
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`And to file UNDER SEAL an un-redacted version of Defendants’ Opposition to
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`Plaintiffs’ Second Motion to Compel Production of Documents Related to Defendants’ ’374
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`Patent Infringement Counterclaim, and accompanying exhibits 1-13.
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`And FURTHER ORDERED that the un-redacted version of Defendants’ Opposition to
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`Plaintiffs’ Second Motion to Compel Production of Documents Related to Defendants’ ’374
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`Patent Infringement Counterclaim, and accompanying exhibits 1-13, shall remain SEALED until
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`further order of the Court.
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`ENTERED this _____ day of _________________, 2020.
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`Alexandria, Virginia
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`__________________________________________
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